PEARE LAL Vs. JHABBA LAL

JUDGEMENT

(1.) This is an appeal in execution proceedings. A decree for the recovery of a maintenance by the sale of immovable property on which the maintenance was charged was held by Mt. Chandan Kuar against the judgment-debtors- respondents. Mt. Chandan Kuar died on the 11 October, 1921, A succession certificate in respect of the decree was obtained jointly by the appellants who are her sons and Mt. Saraswati who was her daughter. On the strength of this succession certificate these parties applied jointly to execute the decree. In their first application they treated the decree as a preliminary decree and asked for the preparation of a final decree, but in the alternative they also asked for execution of the decree as it stood in case no final decree should be necessary. The application was at first dismissed, but on a fresh application execution was allowed.

(2.) The judgment-debtors appealed to the District Judge on the ground among others that Mt. Saraswati alone was the heir of her mother Mt. Chandan Kuar and that the appellants were therefore not entitled to join in executing the decree. The learned District Judge has given effect to this contention and the appellants have filed the present second appeal to this Court objecting to the execution application being dismissed against them.

(3.) A preliminary objection is taken that no appeal lies and the appellant relies on the ruling in Sheoraj Singh V/s. Aminuddin Khan (1898) 20 All. 539. That ruling was passed under the old Civil P. C. and Mr. Agarwala remarks in his commentary (Indian Practice, 3 edition, p. 189) that it requires reconsideration as it ignores Sub-section (3) of Section 47 and a number of rulings to the contrary which are cited in the commentary.